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ELCStruck OutNot stated in judgment· [2022] KEELC 3024 (KLR)

Musembi v Kyengo; Musembi (Applicant) (Environment & Land Case 32 of 2003) [2022] KEELC 3024 (KLR)

Environment and Land Court
14 June 2022
COChristine Ochieng
1,499 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that once a lawsuit 'dies' after a party's death, you must first apply to revive it before asking for anything else.

What this practically means

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Executive summary

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This was a ruling on the Applicant's Notice of Motion dated November 30, 2021, brought under Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking to set aside the court's order of November 23, 2021 closing the file in a land suit, and to have the suit fixed for directions on a priority basis. The applicant, widow of the deceased plaintiff who died on March 8, 2019, explained that although a substitution application was filed on February 25, 2021, it was never heard because the court file went missing, and the notice of directions for November 23, 2021 was received by her advocates a day late. The defendant opposed, contending the suit abated by operation of law on March 8, 2020 since no substitution was made within one year of death as required by Order 24 Rule 3(2), and that the court was functus officio. The court held that once a suit has abated there is no suit on which an application to set aside orders can be anchored; the proper recourse was an application under Order 24 Rule 7(2) seeking leave to revive the abated suit first. Finding the application premature, the court struck it out with costs on June 14, 2022.

Key legal issues

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Whether the court's order of November 23, 2021 marking the suit abated and closing the file could be set aside on the applicant's Notice of Motion

Holding

No. The suit abated by operation of law under Order 24 Rule 3(2) as no substitution was made within one year of the plaintiff's death; the applicant should first seek revival of the abated suit under Order 24 Rule 7(2), making the application premature.

Reasoning

The plaintiff died on March 8, 2019 and no substitution application by the personal representative was made within one year, so the suit abated on March 8, 2020. Once abated, there is no suit on which an application to set aside orders can be anchored. The applicant's remedy is to apply under Order 24 Rule 7(2) for leave to revive the suit before any other application. The application was therefore premature and was struck out with costs.

p. 3

Legal principles established

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  • Once a suit has abated, an application to set aside the orders closing the file cannot be anchored on it; the proper remedy is an application under Order 24 Rule 7(2) for leave to revive the suit.
  • A court has no jurisdiction to order substitution where a suit has already abated by operation of law.

Court orders

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  1. 1.The Notice of Motion application dated November 30, 2021 is struck out with costs
Jurisdiction invoked
Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B & 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Musembi v Kyengo; Musembi (Applicant) (Environment & Land Case 32 of 2003) [2022] KEELC 3024 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3024/eng@2022-06-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.